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TMI Blog2025 (4) TMI 1196X X X X Extracts X X X X X X X X Extracts X X X X ..... since the year 2005. The credit facilities included various term loans and other facilities. Assets of the corporate debtor were also given in security to the loan by the corporate debtor and its directors. The Corporate debtor could not regularise the account. Bank declared the account NPA on 27.09.2011. Bank also issued a recall notice on 13.09.2012 recalling the loan. Bank also filed proceeding under Section 19 of the Recovery of Debts due to banks and Financial Institution Act, 1993 for recovery of debts due to Bank vide O.A. No.332 of 2013 (TA 1660/2013) praying for decree against the corporate debtor. The corporate debtor entered into an agreement with the Appellant on 28.01.2014. Central Bank of India also issued possession notice dated 21.11.2013 in respect of land owned by the company. Corporate debtor entered into an agreement on 28.01.2014 which agreement stated that company unable to pay its debt, Appellant having expressed its desire to extend co-operation in making payment of debt. Agreement acknowledged the debt of the bank. Agreement stated that it was agreed that on payment of Rs.50 lakhs by Appellant to the corporate debtor, corporate debtor shall allow the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the corporate debtor is in possession of the appellant. Corporate debtor has referred to Settlement Agreement dated 28.01.2014 and 22.11.2014 and also pleaded that Rs.6.72 Crores have been paid. Corporate debtor opposed the application. Adjudicating Authority heard the parties and by impugned order dated 14.07.2022 admitted Section 7 application. Reply filed by the corporate debtor was noticed in paragraph 6 of the judgment. 2.3. Adjudicating Authority after considering the submissions of the Central Bank of India as well as the Corporate Debtor and the document annexed along with the petition held that the financial creditor has successfully proved that there exists debt and default. Adjudicating Authority admitted Section 7 application and appointed Resolution Professional. This Appeal has been filed challenging the said order by the Appellant who claim to have taken possession of the corporate debtor in pursuance of the agreement with the corporate debtor dated 24.01.2014. 3. We have heard Shri Krishnendu Datta, Learned Senior Counsel for the Appellant, Ms. Zeba Khan, Learned Counsel for the Central Bank of India and Shri Kushal Bansal, Learned Counsel for the Resolution Profe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng application being barred. Corporate debtor has acknowledged the debt time and again and application of the bank cannot be rejected. 6. Counsel for the Resolution Professional submits that the Resolution Professional has not been permitted to take possession of the assets. Resolution Professional has also filed the reply to the appeal and submits that the appellant who are in possession, did not allow the Resolution Professional to enter into the premises for the last more than 8.5 years. Resolution Professional has initiated proceeding under Section 19(2) as well as Contempt proceedings. An application has also been filed by the Resolution Professional for taking possession and control of the assets. Financial information of the corporate debtor are available only up to 31.03.2010. Resolution Professional has also filed an IA 6860 of 2024 seeking a direction to the Appellant to pay a sum of Rs.79,50,00,000/- to the corporate debtor on account of illegal gains appropriated and/or misappropriated by wrongfully and/or unauthorizedly misutilizing and running the valuable asset of the Corporate Debtor since the last ten years commencing from 2014 till date. 7. We have considered th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsent decree with the usual default clause. In case of any delay in obtaining consent decree, the party should deposit the settled dues amount as per sanction in a separate account carrying no interest, which should be adjusted towards the settled amount In such case, on recovery of entire compromise dues as per sanction, the suit may be withdrawn and bank should claim refund of court fees and credit the entire refund to P/L account. In case party fails to pay the compromise amount within stipulated period, entire concessions will stand withdrawn and to be treated as if there was no compromise settlement in the account and in that case suit shall be pursued vigorously. The above sanction will be subject to compliance of all the terms and conditions stated above and extant guidelines of recovery policy of the Bank. Yours truly, Senior Manager" 10. The Appellant in pursuance of the said OTS made certain payments towards dues of the corporate debtor. A letter dated 19.03.2015 was written by the Appellant to the Bank acknowledging that there is OTS for Rs.12.50 Crores and Appellant has made payment of Rs.6 crores and although Appellant was required to pay amount by 31.03.2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ook over the possession of the Cold Storage. Thereafter, third party paid a sum of Rs.6,72,59,012.00 to the Financial Creditor and took over the possession of the Cold Storage but, till date they have not paid the balance amount to the Financial Creditor. Thus, the Financial Creditor should initiate proceedings against the third party not the Corporate Debtor. d) The entire debt liability is rested on the third party and the same can be construed from the order dated 15 July, 2014 to 15 June, 2016 of the Ld. DRT, Kolkata. e) As per the OTS/settlement agreement with the third party this instant petition is not maintainable against the Corporate Debtor. Further, the Corporate Debtor is being run by the third party. In this instant Petition the Financial Creditor is stating the date of default as on 27 September, 2011, whereas, as per the T.A. pending before the Ld. Debt Recovery Tribunal the date of NPA is 20 March, 2013." 14. Perusal of the order does not indicate that the corporate debtor at any point of time has raised any objection regarding application of Central Bank of India being barred by time. It is debtor who can object regarding application being barred by time which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the Corporate Debtor. The Letter are collectively marked as Annexure "А-15"." (iv) Copy of compromise letter referred as OTS of 2018 is part of Section 7 application and is at page 270 of the Affidavit where an offer of Rs.5 Crore was given by the corporate debtor. The bank also on 04.05.2019 sent a letter to the corporate debtor informing about bank outstanding as on 31.03.2019 and the OTS amount as Rs.6,07,28,000/- 16. The question to be considered is as to whether between 28.01.2014 where corporate debtor has acknowledged and 22.11.2018 which is also another OTS submitted by corporate debtor, there are any material to indicate that there is any acknowledgment within three years from the first acknowledgment. Acknowledgment has to be treated on 28.01.2014 as well as 07.05.2014 and we have to find out whether after 07.05.2014 within three years there are any other acknowledgment because the acknowledgment dated 22.11.2018 is beyond period of three years. 17. The Appellant himself in the appeal has brought on the record the order of the DRT in OA No.332 of 2020 filed by the Central Bank of India against the corporate debtor. It is relevant to notice that Appellant has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceeding. 4. It is contended by the advocate of the defendant that, with the consent of the bank, what the settlement amount has been deposited by the intervener and possession of the cold storage was handed over to Shima Edibles and presently they are running the cold storage. They have no objection if the interveners are made party to the proceeding. 5. The advocate for the defendant for the submitted that the intervener may be made party and maybe permitted to deposit balance settlement amount along with interest. The applicant bank is entitled to balance amount on one time settlement amount plus interest at PLR rate. 6. Learner advocate for the bank on the contrary submits that, they are not party to the agreement between proposed interveners and the defendant and opposed the application of the intervener to be made party to the proceeding as the applicant is proceeding as for the consent decree. Since there is a failure in payment of the decree as per the consent terms, the applicant is entitled to recover the dews from the assets of the defendants. 7. Though agreement dated 28/1/2014 stipulate for payment of Rs 12 crore towards payment only settlement amount but do no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Receiver till the property is sold. Ld. Receiver is directed to appoint a valuer from the panel valuer of the Bank for valuation of the asset and place the same before the Tribunal for fixing the reserve price for sale. The matter is adjourned to 25/4/2017. Copy of this order be given to the parties." 18. It is necessary to notice paragraph 9 of the order which paragraph 9 for ready reference is again extracted which is as follows:- "9. Learned advocate appearing for the defendant file written statement/objection stating, inter alia, that since there is an OTS of Rs. 5.78 crores to be paid with overdue interest at PLR on reducing balance. It was further stated in the said application that the entire balance amount along with interest at the rate PLR and the money be accepted. In this connection, learned advocate refers to the judgement of the Hon'ble Calcutta High Court in the matter of Eastern Paper Mill Machinery Private Limited. Learned advocate for the summit that the intervener are duty bound to pay the balance amount with overdue interest and may take ownership of the cold storage. Advocate appearing for the intervenor submitted that they want refund of the mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n case party fails to pay the compromise amount within stipulated period, entire concessions will stand withdrawn and to be treated as if there was no compromise settlement in the account and in that case suit shall be pursued vigorously". The case of the appellant is that no payment has been made by the appellant after 30.06.2015. Payments made by the appellant are also reflected in the bank statement brought on the record. The entire OTS amount was not paid within time as allowed by the OTS letter dated 07.05.2014. OTS has come to an end. It is also relevant to notice that after receiving OTS letter dated 07.05.2014, as noted above, the corporate debtor has written letter to the bank on 16.05.2019 where the corporate debtor has requested the bank to restore possession to the corporate debtor so it can arrange to pay the OTS amount may be at a time. Letter of the corporate debtor to the bank dated 16.05.2019 is as follows:- "To 16.05.2019 The Chief Manager CENTRAL BANK OF INDIA HALDIA BRANCH East Medinipur Dear Sir, With reference to your proposal for O.T.S in the Loan A/C. Of Shima Edibles pvt ltd, I am Inclined to settle the same. But following Impediments have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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